Before the Court is the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1355) filed herein by GREGORY LEWIS, (hereinafter referred to as "Lewis"). Lewis is currently incarcerated at the United States Penitentiary, Pollock, Louisiana. The Motion was referred for findings of fact, conclusions of law and recommendations for the disposition of the case. The Government has responded to this Motion and asserts it should be denied. The Court has considered the entire record and, as set out below, recommends the Motion to Vacate, Set Aside or Correct Sentence be DENIED.

1. Procedural Background:

On September 14, 2011, Lewis was one of 66 defendants named in an indictment in this Court. ECF No. 1. He was charged in six (6) of the 190 counts of the indictment. Each of these counts alleged various drug distribution crimes. On November 3, 2011, Lewis appeared for an initial appearance and arraignment. ECF No. 338. He was appointed counsel and entered pleas of not guilty to all counts. On March 12, 2013, Lewis appeared before United States District Judge Susan O. Hickey and pled guilty to Count 3 of the indictment, namely, distribution of cocaine base within 1000 feet of an elementary school in violation of 18 U.S.C. §§ 841(a) and 860 and 18 U.S.C. § 2. ECF No. 1085. Pursuant to his Plea Agreement, Lewis agreed to waive certain appellate and post-convictions rights including the right to bring a challenge pursuant to 18 U.S.C. § 2255 except for claims based on ineffective assistance of counsel which challenge his guilty plea or the waiver. ECF No. 1085 ¶ 7. In his Plea Agreement, Lewis acknowledged he faced a mandatory minimum term of imprisonment for 1 year and a maximum term of 40 years. ECF No. 1085 ¶ 12. Additionally, Lewis acknowledged that discussions had taken place regarding his possible Guidelines range and agreed that any such discussions were merely attempts to guess at what appeared to be the correct guideline range and did not bind the Court. ECF No. 1085 ¶ 16. Judge Hickey tentatively approved the Plea Agreement and ordered a pre-sentence report ("PSR").

A PSR was prepared pursuant to the United States Sentencing Guidelines ("USSG"). ECF No. 1261. The PSR assessed a base offense level of 26. ECF No. 1261 ¶ 21. Lewis's base offense level was increased by one due to the offense involving a protected location and increased by four due to him being an organizer or leader which resulted in an adjusted offense level of 31. ECF No. 1261 ¶¶ 22, 25. However, because Lewis was determined to be a career offender, his offense level was set at 34. ECF No. 1261 ¶ 28. After receiving a 3-point reduction for acceptance of responsibility, Lewis's total offense level was 31. ECF No. 1261 ¶¶ 29-31.

The PSR also assessed Lewis's criminal history at 11 points, placing him in category V. ECF No. 1261 ¶ 50. Because he was determined to be a career offender, his criminal history category was increased to VI. Id. The resulting USSG advisory guideline range was 188-235 months imprisonment. ECF No. 1261 ¶ 72.

Lewis appeared for sentencing before Judge Hickey on October 29, 2013. ECF No. 1268. After giving final approval of the Plea Agreement, the Court granted Lewis's motion for departure.[1] ECF No. 1272 ¶ V. The Court found Lewis's criminal history category was overstated and lowered it from a Category VI to a Category V. This resulted in an USSG advisory guideline range of 168-210 months imprisonment. He was then sentenced to 180 months imprisonment, 6 years supervised release, and a $100 special assessment. ECF No. 1271.

On November 6, 2013, Lewis filed a pro se Notice of Appeal with the United States Court of Appeal for the Eighth Circuit. ECF No. 1279. On March 28, 2014, the United States filed its motion to dismiss the appeal based on the appellate waiver contained in the Plea Agreement. The Eighth Circuit granted the motion to dismiss on April 23, 2014. The Eighth Circuit's Mandate dismissing the appeal was filed on May 14, 2014. ECF No. 1330.

b. failure to object to the Court's rulings on factual matters at sentencing,

c. failure to inform Lewis of effect and applicability of the armed career offender or career offender enhancements under the USSG,

d. failure to object to erroneous findings in the PSR related to the career offender enhancements,

e. failure to move for downward departure or reduction of sentence,

f. failure to argue there was no testimony he was not a manager or supervisor as set out in the PSR, and

g. failure to argue a prior conviction used for enhancement purposes occurred when Lewis was sixteen years of age.

The Government has responded to this Motion and asserts Lewis's trial counsel was not ineffective in any particular, urging the Court to deny the Motion. ECF No. 1475. Lewis replied to the Response. ECF No. 1524. I have considered all of the pleadings and matters of record in making this Report and Recommendation.

3. Discussion:

A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) ("Claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255."). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

Lewis raises seven different claims of ineffective assistance of counsel.

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Under the first prong of the Strickland test, the Court must consider counsel's performance objectively and gauge whether it was reasonable "under prevailing professional norms" and "considering all the circumstances." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (citations omitted). The Court should examine counsel's challenged conduct at the time of his representation of the defendant and avoid making judgments based on hindsight. See id. There is typically no basis for finding a denial of effective counsel unless a defendant can show specific errors that "undermined the reliability of the finding of guilt...." White, 341 F.3d at 678. If, however, "counsel completely fails to subject the prosecution's case to meaningful adversarial testing, there has been a denial of Sixth Amendment rights making the adversary process presumptively unreliable [and no showing of prejudice is required]." See id.

If the Court finds deficient counsel and thus must consider the second prong, prejudice, a defendant must establish "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Prejudice can only be found if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992).

For the reasons set out below, I do not find Lewis has established ineffective assistance of counsel for ...

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